Courts

Ed O'Bannon's Strange, Sad Testimony Against the NCAA

(Corrects the first name of lawyer Glenn Pomerantz in the fourth paragraph. )

For the bane of the college sports business, Ed O’Bannon sure didn’t seem happy to take the stand against the National Collegiate Athletic Association. The former University of California, Los Angeles basketball star at times sounded ambivalent and even regretful during testimony yesterday on the opening day of a long-awaited antitrust lawsuit in which current and former athletes are attacking NCAA rules barring player compensation for commercial use of their images.

O’Bannon, who led his UCLA team to the 1995 national championship, is the main named plaintiff in a suit in federal court in Oakland seeking to end to the NCAA’s prohibition on college players receiving a share of the hundreds of millions of dollars in annual broadcast revenue generated by the televising of their games. “With the amount of money they’re bringing in, they should be compensated,” O’Bannon testified before U.S. District Judge Claudia Wilken, who is hearing the case without a jury.

Guided by lead plaintiffs’ attorney Michael Hausfeld, O’Bannon said he didn’t think that current and former members of Division 1 basketball and football programs were really “amateurs” or “student-athletes,” as the NCAA claims. “I considered myself an athlete,” said O’Bannon, 41. These days, he sells cars for a dealership in Las Vegas.

Under cross-examination by Glenn Pomerantz, a lawyer for the NCAA, O’Bannon conceded that he’d volunteered to follow the association’s rule against player compensation beyond his scholarship and had been proud to represent UCLA. He praised his coaches, said he considered them mentors, and acknowledged he had “enjoyed my experience there.”

O’Bannon came off as an odd representative for a class action alleging that college players are victims of an exploitative price-fixing “cartel.” His years at UCLA led to two seasons in the National Basketball Association and a number of additional years of professional play in Europe. He conceded that his UCLA academic education remained valuable to him and that—although he hadn’t graduated during his basketball days—he’d since gone back to complete his degree.

Unlike the vast majority of undergraduate football and basketball players, whose sports careers end when they leave campus, O’Bannon earned a more-than-respectable living for the better part of a decade, in large part because of what he learned at UCLA. He lauded the school’s basketball heritage as “second to none” and said, “I wanted to help continue that tradition.”

At times during his testimony, O’Bannon seemed almost sad. At other moments, he made odd remarks, including that even Little League athletes deserve to be paid if their games are televised. “Yeah, absolutely, if they are generating revenue,” he testified.

Despite O’Bannon’s less-than-overwhelming performance, most signs continued to point toward a ruling against the NCAA. That Wilken had certified the suit as a class action and then refused the association’s request for summary judgment before trial imply that she finds the plaintiffs’ basic argument plausible. Her apparent lack of interest yesterday in various evidentiary objections by the NCAA’s legal team reinforced that impression.

Before testimony began, the NCAA said it had settled a related suit filed on behalf of players who objected to use of their likenesses in Electronic Arts (EA) video games. The $20 million settlement resolved claims that depicting players in the video games without their permission or compensation violates their right to license their identity.

While the NCAA says it is determined to draw the line on the antitrust claims in the O’Bannon case, the tone of Monday’s court proceeding suggested that the association expects to lose before Wilken and is doing what lawyers call “making a record” for an eventual appeal. The trial is scheduled to last about three weeks. The judge will probably issue a ruling in late summer.

Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.